Tacoma council considers stance on WA drug-possession bills. Here’s where it is leaning

The Tacoma City Council is considering throwing its support behind one of two bills in the state Legislature that would rewrite drug-possession laws for the second time in two years.

In February 2021, the Washington Supreme Court ruled in State vs. Blake that the state’s main drug-possession law was unconstitutional because it did not require prosecutors to prove that the defendant knowingly possessed the drugs. The ruling meant there was no state law that made simple possession of a drug a crime. In April 2021, the Washington Legislature passed Engrossed Senate Bill 5467, which states those who are found in possession of a controlled substance should be offered diversion to treatment twice before being jailed and prosecuted. Possession of a controlled substance was also lowered from a felony to a simple misdemeanor. The law expires July 1.

Sonja Hallum, the city’s government relations officer, at the Tuesday, Jan. 24, study session asked the council for feedback on the controlled substance bills introduced so far in the 2023 legislation session. The City Council focused on Senate Bill 5536 and Senate Bill 5467.

• Senate Bill 5467, sponsored by Sen. Jesse Salomon, D-Shoreline, makes knowing possession of a counterfeit or controlled substance a gross misdemeanor and makes knowing possession of a legend drug a misdemeanor. It also a provision that states when law enforcement issues a citation for a violation, no warrant may be issued for failure to appear at the arraignment unless the person was personally served with the notice of the hearing.

• Senate Bill 5536, sponsored by Sen. June Robinson, D-Everett, makes knowing possession of a counterfeit or controlled substance a gross misdemeanor and makes knowing possession of a legend drug a misdemeanor. The bill also removes “giving” paraphernalia as a civil infraction, so that only selling paraphernalia is a civil infraction.

Hallum said the two bills were similar in that both make the knowing possession of a controlled substance a misdemeanor and creates an opportunity for diversion. SB 5467 requires a person to be convicted before they are given the opportunity to go through treatment, and if they successfully complete treatment, the court would vacate the conviction. SB 5536 states a person would be charged and then given the opportunity to go to treatment, and, if they are successful, the charges would be dismissed. The effective date for the two bills are different: SB 5467 would be effective as soon as it’s signed by the governor, and SB 5536 would go into effect 90 days after the legislative session ends.

Keith Echterling, assistant city attorney, said if either bill passed, law enforcement could strategically approach controlled substances violations again.

Tacoma Municipal Court Judge Drew Ann Henke said the court would be able to follow the requirements of the proposed bills.

Tuesday’s discussion was the first indication of the council’s view on the issue. In December, Mayor Victoria Woodards was asked to sign onto a letter written by Pierce County Prosecutor Mary Robnett calling for the re-criminalization of drugs. Woodards declined to add her name to the list of 15 area mayors. Woodards said she was uncertain of the council’s stance on the issue.

A resolution that will go up for a vote at the Tuesday, Jan. 31, council meeting states, “Any legislation that permits a person to be charged with a crime for possessing a controlled substance should be limited in seriousness to no greater than a gross misdemeanor and should include the ability to avoid having the offense on the person’s records if they complete substance use disorder treatment.”

Council member Sarah Rumbaugh said having a possible criminal charge is “the accountability, the motivator to actually go through to treatment.”

The council had significant concerns around funding Tacoma Municipal Courts or for treatment facilities if one of the bills was passed. Tacoma Municipal Court could have an increase in cases due to drug possession being a misdemeanor charge instead of a felony charge.

Council member Catherine Ushka, District 4, said the court and the treatment facilities should be able to expand and contract as needed. Ushka also said she does not want to to deny people the opportunity to go to treatment.

Henke said the Tacoma Municipal Court could handle 40 cases “without too much problem” but wasn’t sure about beyond that.

Henke said the courts don’t want to turn anyone away.

“We will make it work, but we will also come to you and say we need help,” she said.

Hallum said SB 5467 and SB 5536 have provisions that say implementation is subject to state funding and substance-use treatment is to be provided for indigent individuals. She added some health insurance covers substance use disorder treatment.

Council member Joe Bushnell, District 5, said he would like to see the bills require health insurance to cover the cost of treatment.

Bushnell also said he was in favor of repealing the law that required those in possession of drugs to be referred twice for diversion. He said he does not want people to have to wait to get into treatment.

Olgy Diaz, an at-large council member, said she doesn’t want the two referrals for treatment to be repealed.

“There has to be a way forward that doesn’t immediately criminalize people, felony, misdemeanor or otherwise,” Diaz said.

Hallum said the two-referrals provision has been a barrier to enforce the drug-possession law.

Council member John Hines, District 1, said if the two-referrals piece remained, the Legislature would need to determine a way to track how many times someone was referred to treatment. Hallum said the state does not have a system to track the referrals to treatment.

“It de facto decriminalizes the offense if we’re not following through,” Hines said.

Council member Kiara Daniels, at-large, said she preferred SB 5536 because it is easier without the process to vacate and the associated costs. She added in a perfect world where people have access to therapy and substance-use treatment, drug possession would be criminalized.

Other council members said they leaned toward SB 5536 over SB 5467 because it avoids conviction by getting treatment.

Hallum said SB 5536 would likely move forward.

The council has another State vs. Blake discussion on the agenda for the Tuesday, Jan. 31, study session.